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October 18, 2010

Update on sentencing debate over doctor and wife involved in (extreme!?!) health care fraud

In this post from earlier this month, I noted the start of the sentencing debate surrounding a Kansas case in which the feds are seeking the harshest possible sentence, life without parole, for notable (white-collar?) offenses.  This new AP story, headlined " Kansas doctor convicted in overdose deaths seeks 20-year term instead of life," provides the latest report on what the defendants are to argue at sentencing.  Here is how the AP story starts:

A Kansas doctor and his wife whose clinic is linked to dozens of overdose deaths have asked a federal judge to sentence them on Tuesday to the mandatory minimum 20 years in prison, rather than the life sentences sought by prosecutors.

A court document filed Saturday by defense attorneys in the case of Dr. Stephen Schneider and his wife, Linda, argues unduly harsh sentences are likely to discourage doctors to prescribe controlled drugs for fear their patients will mislead them or not use medications as directed.

The defense also argued excessive sentences would deter other physicians from accepting government-sponsored insurance that involves complex billing procedures fraught with human error.

The defense argued that the sentencing guidelines were intended to punish drug dealers who traffic on the street in heroin and crack cocaine, substances which have no medical purpose.  "Plainly, this type of conduct is a far cry from the acts at issue here, and treating the defendants similarly to run-of-the-mill drug dealers would result in an excessive and unfair punishment," the defense wrote.

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This case shouldn't really surprise anyone. The U.S. Sentencing Guidelines provide for a life sentence enhancement for illegal distribution of a drug resulting in death. The Feds have previously obtained life sentences for a few M.D.s concerning distribution of narcotics by prescription without a medical necessity (script docs) resulting in death. It is common for non-M.D.s who distribute heroin and narcotics that result in death to receive the life sentence enhancement. Why should it be any different for M.D.s?

Posted by: Jim Gormley | Oct 18, 2010 8:53:22 PM

Jim is of course correct - We could discuss the chain of evidence etc, but I don't have the stomach for it right now.

Just a little flash back that came to me as I read this. I once was talking to a miner about a politician who wanted to close a mine. The miner said that he hoped the son-of-a bitch died cold and in the dark. Every Doctor I know fears writing adequate pain medication and the sentiment of some is that the regulators meet their maker in excruciating pain.

That said I know that there are many more relevant things to say about this case, I'm just on the fringe of thought with this post.

Posted by: beth | Oct 18, 2010 10:11:56 PM

What most folks don't realize is that once citizens catch the attention of ferociously ambitious prosecutors they will either sign plea agreements or find themselves in a courtroom being portrayed as the most dastardly villains since the guy with the top-hat and mustache tied the maiden to the railroad tracks.

Another thing that isn't widely known is that conspiracy in the context of a federal trial doesn't always mean shady folks with evil smiles stealthily plotted to break the law.

To the contrary, in the last conspiracy trial I covered the defendants had never met. The only contact two of them had before they were charged was a 9-second phone call in which only routine office pleasantries were exchanged.

So maybe the Kansas doctor and his wife are cravenly conspirators as prosecutors contend. Or maybe their crime was failing to bend medical judgments to the unyielding will of drug-war bureaucrats.

Either way, one of the scariest experiences I've had was listening to jury instructions for conspiracy in a fraud case. Apparently the jury in that case was shaken, too. After several days of deliberations they sent a message to the judge asking if were "possible" to acquit on the conspiracy charge. He grudgingly allowed it was (after scolding them for taking too long to reach a verdict)...and the jury did eventually acquit.

All this is to suggest that while it appears these Kansas folks crossed some lines and harmed some people, the justice system can't be trusted to deal honestly and even-evenhandedly with citizens accused of crimes.

So while I, too, hope the folks who foster and feed on this despicable system someday end up needing more pain meds than their doctors dare provide, fact is most of us will probably end up suffering right along with them as victims of a justice system that's lost its way.

Posted by: John K | Oct 19, 2010 10:07:08 AM

Of course, we'll never know the objective truth. But the jury found that, far from being railroaded by an overzealous prosecutor, the doctor and wife orchestrated a moneymaking conspiracy that resulted in the deaths of 10 patients. The wife also had a previous conviction for fraud, which I'll assume means that she ain't the most honest of the lot. Given that the jury heard the evidence, I'll presume their judgment was correct.

If this were a case of a doctor mistakenly prescribing too much medicine to a patient who eventually abused it on his own free will, there might be something to worry about. But I sincerely doubt that well-meaning doctors who try to play by the rules will be deterred because a thief putting his personal interest above that of his patients' lives was convicted of...well, precisely that, and sentenced accordingly.

Posted by: Res ipsa | Oct 19, 2010 5:06:08 PM

Res, would you have presumed correct judgments by jurors involved in the 200-plus trials of death-row inmates who were later exonerated by DNA evidence?

Posted by: John K | Oct 19, 2010 8:49:30 PM

Depends on the circumstances. If we're talking about a black defendant convicted in a racially charged trial in the Deep South, probably not. If we're talking about cases where prosecutors withheld evidence, or cops lied on the stand, then no, I wouldn't. But when we're talking about death sentences imposed during the last 10 years, the jury appears factually right about 99% of the time, and the other 1% is rooted out on appeal. Can you name three people who have been executed post-Furman who were (really, not dubiously) factually innocent?

Lord knows that prosecutors sometimes do railroad defendants, or defendants become victims of prejudice in society. But I don't see any indicia of those in this case. Also, the charges here were pretty cut and dried--the doctor and his wife were charged with orchestrating a fraudulent scheme that ultimately led to deaths of patients. This is not a case of six-degrees-removed conspiracy--the ones charged with creating and running the scheme were the ones on trial.

Given the above, the only fair presumption is that the jury got it right.

Posted by: Res ipsa | Oct 19, 2010 11:02:44 PM

The jury is the only body to hear all the evidence first-hand. As Res ipsa notes, it is also correct far more often than not. Given that much, to presume that its judgment is the product of corruption, error or villainy, rather than of an informed weighing of the facts, is absurd.

John K -- If you have specific evidence that the defendants in the case being discussed on this thread are anything other than factually guilty, you have yet to adduce it. What is it?

Posted by: Bill Otis | Oct 20, 2010 12:35:22 AM

Who knows how many Americans live in abject misery because of the DEA's unrelenting war on pain-management docs like this guy in Kansas?

A sane society would be more concerned about providing relief for people in terrible pain than foiling or imprisoning "drug seekers."

Here's some background that was missing from the snippets of news that accompanied this thread (particularly noteworthy is the graf noting how prosecutors stretched and inflated the body count they attributed to the doctor):

"Siobhan Reynolds, head of the patient and doctor advocacy group the Pain Relief Network, which had championed the Schneiders' cause, was also present for the verdict. "The crisis in pain treatment is going to deepen even further," Reynolds said outside the courtroom. "People are going to have trouble getting care because doctors are afraid this is going to happen to them."

"Schneider had testified that he was only trying to help patients in pain and that he had been deceived by some of them. He also said he had never meant to hurt or defraud anyone.

"Defense attorneys for the pair had argued that the government was meddling in doctor-patient relationships and that the government had overinflated the deaths attributable to Schneider's prescribing by including patients who committed suicide, patients who took illegal drugs, patients he had never seen or had treated months before their deaths, and patients who died while the couple was in jail.

'Federal authorities have prosecuted hundreds of pain management physicians in the last decade, throwing what advocates say is a pall over pain management and deepening what they say is a crisis in chronic pain treatment. Now, the Schneiders and the patients they will not be able to help are the latest martyrs in the battle for chronic pain treatment."

BTW, Res, I count myself among a growing number of folks who believe getting in trouble with the law has become as much a random happenstance as an accurate measure of the accused's character or honesty...as you suggested in your blithe dismissal of the Kansas doctor's wife.

Posted by: John K | Oct 20, 2010 8:39:02 PM

John K --

Nice speech. Utterly one-sided, of course, but what else is new?

Putting to one side for the moment the pill-mill PR statement, let me ask once more the question you whistled past: If you have specific evidence that the defendants are anything other than factually guilty, you have yet to adduce it. What is it?

I'll ask one more question as well: Do you actually believe that greed played no role in their operation?

Posted by: Bill Otis | Oct 21, 2010 10:20:03 AM

Given subpoena power and the authority to enforce vague, sweeping statutes concocted decades ago to squash rich, connected, lawyered-up mob bosses and drug kingpins, it shouldn't be too difficult to railroad a mere pain-treatment doctor into a federal prison cell.

Posted by: John K | Oct 21, 2010 8:56:33 PM

And another thing, doesn't greed, to one extent or another, play a role in virtually everyone's operation? Would you have prosecuted people if they weren't paying you to do it? No wait, I withdraw the question.

Posted by: John K | Oct 21, 2010 9:16:26 PM

John K --

1. Working for a living is not greed. It's a virtue, although admittedly not one in vogue with the Democrat/welfare crowd. In contrast, cheating so that you can live like royalty IS greed. You don't discern the difference? Really?

Here again is the question you entertained but didn't answer: Do you actually believe that greed played no role in these defendants' operation?

2. Here's the other question you didn't answer: Do you have specific evidence that the defendants in the case being discussed on this thread are anything other than factually guilty?

3. In light of your responses, here's a third question: Why do you find it necessary to elide questions rather than give direct answers?

P.S. I am tempted to answer, to your withdrawn question, that sure, I would have prosecuted people for zero salary, simply because I'm a sadistic barbarian and bloodlusting tyrant, as some of the abolitionist crowd here have so often observed (where's claudio now that I need him?).

On a slightly more serious note, while I didn't work for zero, I did work for about a third, maybe slightly less, of my open market value.

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